Tribunal Rules, Fees and Pre-Termination Negotiations

The Problem

It was considered by many that the old tribunal rules were too complex and poorly drafted as a result of piecemeal change over the years. This caused a significant review to be undertaken which, in turn, has led to new rules being issued.

As for fees, the Government said it was part of its plans to reform employment law but the cynic within me thinks the introduction of fees is not to address any particular problem with the current system but rather to address the increasing costs of running the tribunal system.

The Principle

The headline changes are as follows:

Fees

• a new claim will be rejected if it is presented without a necessary fee (for the fees payable) or application for remission of that fee;
• where a party has not paid any fee due, the tribunal will send the party a notice specifying a date for payment or presentation of a remission application. The claim or application will be dismissed without further order (or the judicial mediation will not take place) if, by that date, the party has not paid the fee or presented a remission application;
• a party may apply for a dismissed claim or response to be reinstated but such an order will only be effective if the fee is paid, or a remission application is presented and accepted, by the date specified in the order; and
• if a remission application is refused in part or in full, the tribunal will send the claimant a notice specifying a date for payment of the tribunal fee.

Rules

• separate case management discussions and pre-hearing reviews will be combined into one preliminary hearing;
• an initial paper sift will be introduced, which seeks to ensure that weak cases that should not proceed are identified and dealt with more effectively;
• the reasons given for any decision or review (renamed ‘reconsideration’) will be required to be ‘proportionate’ to the significance of the issue; and
• a greater degree of flexibility in the issuing of deposit orders will be allowed in order to enable Employment Judges to make an order if a party wishes to pursue a specific allegation or argument which has little reasonable prospect of success.

Pre-Termination Negotiations

• confidential pre-termination negotiations, contained in s14 of the Enterprise and Regulatory Reform Act 2013, are coming into force on 29 July allowing certain discussions to be kept confidential from a tribunal in most unfair dismissal cases; and
• the re-naming of ‘compromise agreements’ as ‘settlement agreements’.

The Practice

The new rules are due to come into force on 29 July 2013 at the same time as the introduction of fees in the employment tribunals and the EAT.  However, we understand that UNISON has made an application for a judicial review of the introduction of fees.  The Court of Session in Scotland is also considering a similar application from a Scottish firm of solicitors.  They are arguing these charges will make it ‘virtually impossible’ for workers to exercise their employment rights (and in Scotland that the fees are disproportionate with other court fees).  We will keep an eye on these applications and how the introduction of the new rules (and possibly fees) will change the landscape of employment litigation. No one is particularly sure what the impact will be just yet and as with many recent changes there’s still a lot to clarify before 29 July.

For more information, help or advice please contact Tim Davies on 0191 211 7927.